Two Years Later, USA PATRIOT Act Draws New Criticism; Bipartisan Criticism in Washington and the States Point to Reform

October 24, 2003 12:00 am

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WASHINGTON – With the two-year anniversary of the controversial USA PATRIOT Act’s passage approaching this weekend, the American Civil Liberties Union today pointed to growing bipartisan support in the House and Senate for new legislation to narrow the law and bring it back in line with the Constitution.

“We’re optimistic that Congress will decide, once and for all, that laws that permit dragnet-style investigations of innocent Americans, without any individual suspicion, run against the grain of what America is about,” said Anthony Romero, ACLU Executive Director. “If civil liberties are not affirmed now, future historians will no doubt look back with disdain at an era when neither safety nor freedom were protected properly.”

Of primary interest, the ACLU said, are several newly introduced bills in Congress that take a variety of legal approaches to narrowing certain sections of the PATRIOT Act.

“Ever since the House voted overwhelmingly to roll back ‘sneak and peek’ delayed-notification searches, momentum has been growing to fix other troubling sections of the bill,” said Laura W. Murphy, Director of the ACLU Washington Legislative Office.

Murphy pointed specifically to the Safety and Freedom Ensured (SAFE) Act as the measure with the best chance for passage. Co-sponsored by Sens. Larry Craig (R-ID) and Richard Durbin (D-IL), the SAFE Act also enjoys the strong backing of New Hampshire Republican John Sununu and Wisconsin Democrat Russell Feingold. Among other things, the legislation would tweak the most contentious provisions in the PATRIOT Act – including sneak and peek and Section 215, which allows the FBI to seize personal business, medical and even library records without probable cause – to bolster judicial review and prevent the widespread investigation of innocent Americans.

Also pending in Congress is the Protecting the Rights of Individuals Act, sponsored by conservative Republican Senator Lisa Murkowsi (AK) and Oregon Democrat Ron Wyden. The Murkowski-Wyden bill would surgically tailor the PATRIOT Act, keeping non-controversial sections intact and providing added court oversight and institutional checks and balances to those sections that currently fail to comport with the Constitution.

And, in the House, Rep. Denis Kucinich (D-OH), has introduced the Ben Franklin True Patriot Act, which would, in addition to comprehensively revamping the PATRIOT Act, address other contentious post-9/11 security measures, including the President’s insistence that he be allowed to designate American citizens as enemy combatants, stripping them of all their due process rights under the Constitution.

The ACLU’s Murphy predicted that at least one, if not more, of these measures could weave their way through the legislative process before the end of the 108th Congress, putting the ball in the President’s court.

Encouraging Congressional action, Murphy said, is a significant grassroots movement to protect civil liberties. To date 200 communities – encompassing approximately 26 million people — that have passed local government resolutions calling for fixing the PATRIOT Act. In addition, state legislatures in Alaska, Hawaii and Vermont have spoken out in favor of civil liberties.

Despite growing public pressure in support of civil liberties, the President and the Justice Department have yet to abandon their unquestioning support for these security measures. In fact, less than a month ago, the President asked Congress for three new policing powers, including one that would allow agents to compel testimony without any court supervision, during a speech at the FBI Academy in Quantico, Virginia. Around that same time the Attorney General embarked on a nation road show of sorts to shore up support for the PATRIOT Act. And since then, the Secretary of Homeland Security has been deployed to take up a similar campaign to prop up the ailing PATRIOT Act.

“If the President continues his dismissive attitude toward post-9/11 civil liberties concerns,” Murphy said, “he’s going to face a rude awakening as many in his party’s continue a fundamental re-examination in favor of civil liberties protections.”

In the courts, the ACLU filed the first constitutional challenge to the PATRIOT Act in July, targeting Section 215 of the law. The ACLU argues that this provision — by allowing FBI agents access to a variety of personal documents, including business, health, student, library and even genetic records without probable cause to believe criminal activity is ongoing or intended — would permit agents to blindly spy on the political, religious or cultural activities of certain groups of innocent Americans on the gamble that they’ll snag a terrorist.

Filing on behalf of six community and advocacy groups, ACLU attorneys are seeking an injunction against the use of Section 215 and asking the court to order the Justice Department to disclose specific information about how the power has been used and against whom. Responding to the ACLU’s lawsuit and growing public outcry, the Justice Department declassified a memo last month stating that power hadn’t been used to date.

Calling the move puzzling in that the Attorney General has, for two years, cited national security concerns as the reason for keeping information about the use of the PATRIOT Act secret, the ACLU continues to ask the Justice Department why such concerns no longer apply. Also troublesome, the ACLU said, is, if the powers granted in Section 215 weren’t needed, why did the Attorney General lobby Congress so hard for them, occasionally going so far as to imply that if Congress failed to act, any future loss of life would be on its hands.

“If the Attorney General thought his declassified memo would allay public and Congressional concerns about the broad powers granted in the PATRIOT Act, he was sorely mistaken,” said Ann Beeson, ACLU Associate Legal Director. “In fact, his disclosures prompt more questions, not least of which is: is the Justice Department selectively declassifying information about the besieged PATRIOT Act for the sake of public relations damage control?”

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